In 2004, the Bar made an important change to its guidelines for practice and introduced the Public Access Scheme allowing members of the public to instruct barristers directly instead of going through a solicitor first. For those of you who have or will take the opportunity to avail yourselves of this Scheme, there are steps and certain information that you should have which will make the entire process smoother for you and your barrister. And anything that assists to make your case more manageable for your barrister is ultimately of direct benefit to you.
First, in simple language in a covering statement, call it “Instructions to Counsel” if you wish, explain what you would like your barrister to do for you – whether it is to provide advice, write a letter, draft a document or appear in court.
Second, if there is a court hearing coming up, tell the barrister’s clerk about it, giving the date or dates, even if you are just asking for advice, and mention the upcoming hearing and date(s) in your Instructions to Counsel.
Third, if the court has ordered you to take any particular steps, tell the clerk about it, including the deadline for action, and, again, highlight it in your Instructions to Counsel.
Fourth, whether instructing counsel for a conference, to prepare legal documents, such as wills or contracts, or litigation documents, including statements of case and witness statements, or briefing counsel to appear in court, make sure to do the following:-
- provide all of the background documents – if the case is about a will, include a copy of the will, and copies of any previous wills, codicils, related trusts and medical information on the testator (the person whose will you are concerned with), if relevant, and available; if it is about a contract, include a copy of it;
- the background documents also include all relevant correspondence including all correspondence from opposing parties and their legal representatives concerning your dispute, in chronological order;
- all the previous litigation documents, court orders and transcripts of hearings, in chronological order;
- all underlying documents – for example, if the case involves financial claims concerning a party or parties, and you have bank statements and other relevant information, include this, as always in chronological order; if the case involves disputes over property, include relevant documents from the Land Registry;
- understand that your discussions with the barrister are confidential and the documents you have provided to her are to remain confidential unless you authorise otherwise;
- if you are involved in litigation in court and you have a solicitor on the court record, you must tell your solicitor to brief the barrister for court – you cannot instruct the barrister directly in those circumstances;
- label the section of the file that you provide to the barrister, i.e. background documents, statements of case, court orders, transcripts of hearings, other material, and paginate the pages of the file.
The rules have recently changed to allow in some instances for someone who is getting or is eligible for public funding to still instruct a barrister direct. If you don’t know if you qualify, or wish to speak to someone concerning the details involved, you might contact a solicitor who does publicly funded work, as he or she will be able to explain about the arrangements, and will be able to carry out the means-testing required to establish that you are eligible. You can find out more information on the gov.uk website. You might then wish to instruct a barrister direct.
You may also wish to consider whether you have any insurance policies that might cover your legal fees, such as your home owners insurance.
The complex issue of costs is of paramount importance throughout the course of any litigation. Recently, the Civil Procedure Rules were substantially amended to introduce a host of intricate requirements and principles. Many apply to litigants in person, at least indirectly, and need to be considered, although the new requirement to file and exchange budgets for cost management of cases does not generally apply to litigants in person (see CPR 3.13).
Finally, and most importantly, do instruct the barrister of your choice as early as possible. This cannot be overstated. If you wait until just before a hearing or you have to comply with some rule of procedure, you may end up spending additional money and time to obtain relief from any sanctions caused by your delay. Or you may lose out by being prevented from complying later on – or losing your case altogether, if, for example, you are debarred from (not allowed to)defending a claim against you. because you ignored previous rules and orders. Or at the least, you may risk your case not being properly prepared and the necessary evidence not being adduced in court, with the obvious attendant possibly unsatisfactory consequences. There may be also other harsh costs consequences of delay.
Moreover, there is a guiding principle, found in the Civil Procedure Rules that as soon as you are aware that you need to do something, i.e. make an application to court within existing proceedings, you should not wait. The application must be made as soon as possible. And if you haven’t started litigation but you think you have a claim against someone, you cannot “sit on your rights”. There may also be strict time limits on bringing proceedings – the Limitation Act is a detailed and complex law setting out the time frame which must be followed for issuing proceedings. Additionally, there are often other specific statutory and procedural time requirements which must be complied with. The protocols in the Civil Procedure Rules must also generally be followed. If you want the court to stop some action from occurring, or take some positive action like freezing assets or the sale of a property, this requires an injunction and must be made as a matter of urgency.
HELENE PINES RICHMAN
This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.